Collins & Aikman Floor Coverings Corporation, f/k/a Collins
& Aikman Corporation ("C & A") seeks by petition pursuant to
9 U.S.C. § 10 to vacate an arbitration award directing it to
pay Robert Froehlich ("Froehlich") the sum of $152,643.52 for
the alleged breach of an employment agreement between C & A and
Froehlich dated October 22, 1979 (the "Agreement") and to
reimburse Froehlich for the administrative fees he advanced to
the American Arbitration Association ("AAA") in the sum of
$4,394.62. Froehlich has cross-moved for the confirmation of
the Award. For the reasons set forth below, the Award is
vacated and a rehearing is directed.

The Parties and the Agreement

C & A is a Delaware corporation with an office and its
principal place of business in Dalton, Georgia. It is in the
business of, among other things, manufacturing commercial
flooring and carpeting. Froehlich is a New York resident who
entered into an employment agreement with C & A dated October
22, 1979. The Agreement set out the parties "understanding" as
to Froehlich's "engaging in commission sales activities on
behalf of C & A" and provided in pertinent part:

(a) Froehlich can sell the C & A products
described in Schedule "A" of the Agreement to
"customers" and in the "territory described in
Schedule B" at a commission rate of "7 1/2%".

(b) Changes in the schedules concerning C & A
products, customers, territory and compensation
could only be modified "either upon individual
written notice to [Froehlich] or by promulgating
such change in a publication generally
distributed or made available to sales personnel
carrying on sales efforts in [Froehlich's]
general field." (¶ 4).

(c) The Agreement was to continue indefinitely
subject to termination: (i) by Froehlich
immediately upon the giving of written notice to
such effect to C & A; and (ii) by C & A by giving
written notice of termination "to become
effective at such time (not less than thirty days
from the giving of such notice) as may be
specified and noticed." (¶ 7).

(d) In the event of termination of this
agreement: unless otherwise specifically provided
in Schedule C, commissions shall be due only with
respect to C & A products which are shipped to
the customer prior to the effective date of
termination as provided in ¶ 7 of this agreement
(and only if such C & A products are subsequently
fully paid for by the customer). (¶ 5(b)).

The Agreement provided for resolution of any "claim or
controversy" by arbitration in accordance with the rules of
the AAA and also provided in ¶ 8(d) that:

The arbitrator sitting in any such controversy
shall have no power to alter or modify any
express provision of this agreement or to render
any award which by its terms effects any such
alteration or modification.

Finally, paragraph 8(f) of the Agreement specifically
states:

This agreement shall be governed by and construed
in accordance with the laws of the State of New
York.

On February 19, 1986, C & A notified Froehlich that his
employment with C & A was terminated effective March 21, 1986
and paid him all the commissions due him for C & A products
which were shipped to his accounts as determined by C & A
prior to the termination date.

Prior Proceedings

In August 1986, Froehlich commenced an arbitration
proceeding against C & A before the AAA in New York City
pursuant to the arbitration clause in the Agreement. Diana
Long Nicholson, Esq. (the "Arbitrator") was appointed.

The initial hearings in this matter took place on February
24, 1987. The record of sales (consisting of copies of
invoices produced by C & A at the initial hearing and
computerized statements) reflected the following:

(i) Aetna — all commissions on sales made prior
to termination were admittedly paid to Froehlich;

(ii) GTE — all commissions on sales made prior
to termination were admittedly paid to Froehlich;
and

(iii) Cigna — sales of $118,092.53, (if
commissionable the amount would be $8,856.94).

(b) Sales made from March 22, 1986 to August 15,
1986, the date of the demand for arbitration.

(i) Aetna — sales of $36,461,52 (if
commissionable, the amount would be $2,734.61).

(ii) GTE — sales of $26,520.84 (if
commissionable, the amount would be $1,989.06).

(iii) Cigna — sales of $203,720.21 (if
commissionable, the amount would be $15,279.01).

(c) Sales made from August 16, 1986 through
February 24, 1987, the first date of the
hearing.

(i) Aetna — sales of $10,001.62 (if
commissionable, the amount ...

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